Provisions

The Brady Bill Act initially required purchasers to wait up to five days for a background check to occur before being allowed to purchase a handgun. If the background check was returned before the five days had elapsed, then the transfer could occur at that time, and if the check had not been completed in five days, then the transfer was not allowed to occur. In some states, proof of a previous background check could be used to bypass the wait. For example, a state-issued concealed carry permit usually included a background check equivalent to the one required by the Act and could be used in place of the Act's check. Many states passed shall issue concealed carry laws in the wake of the Act's passing. The Act applied only to transfers from a dealer licensed to sell guns by the Treasury Department to a private individual. Sales between private parties could not be covered under the Act because the federal government had no jurisdiction to restrict intrastate commerce. The provision in the Act that mandated local law enforcement officials to carry out background checks was struck down by the Supreme Court in 1997 because, the court ruled, it violated the Federalism provisions of the Constitution (see below). In many jurisdictions, no attempt was made to process the background checks, and the Act became a simple five day waiting period.

The waiting period provision of the Act expired in 1998 when the National Instant Criminal Background Check System (NICS) came online. NICS is managed by the Federal Bureau of Investigation (FBI). The system runs database checks on criminal records. A handgun purchaser may still have to wait for up to three business days if the NICS system fails to positively approve or deny his or her application to purchase a firearm; if the denial is not issued within those three days, the transfer may be completed at that time. State alternatives to the background check, such as state-issued handgun permits or mandatory state or local checks, may still bypass the NICS check.

In 2000 Sarah Brady purchased a .30-06 Springfield rifle in Delaware for her son. Second amendment rights groups claimed that this action was a straw purchase, intended to avoid the NICS, and may have also violated Delaware firearms purchase laws. While a purchase as a gift is not considered a straw purchase under US federal law, as long as the recipient is not prohibited from possessing the firearm; this is the same as any other private transfer, private transfers are a common target of gun control advocates, who usually call this the gun show loophole, and would make these transfers illegal.

Court challenge

In 1997 one provision of interim Brady Law was ruled unconstitutional by the Supreme Court in Printz v. United States on 10th amendment grounds. The provision compelled state and local law enforcement officials to perform the background checks mandated by federal law. The Court determined that this provision violated both the concept of federalism and that of the unitary executive. However, state and local law enforcement officials were free to conduct the check if they so chose and many continued to do so. This issue became moot when NICS came online.

The Brady Law today

The five-day waiting period for handgun purchases expired on November 30, 1998 and was replaced by a computerized criminal background check prior to any firearm purchase from a dealer holding a Federal Firearms License (FFL). All dealers, manufacturers and importers must verify the identity of a non-FFL customer and receive authorization from the National Instant Check System (NICS) which often takes only minutes instead of the several-day waiting period.

Unless an exception applies or the purchase is being made using an approved alternative method, the Brady Law requires that background checks for individuals be conducted before a firearm may be purchased from a dealer, manufacturer or importer. Unless there are additional state restrictions, the firearm may be taken upon NICS approval. Purchases from a non-FFL seller are not subject to the Brady Law, but may be covered under other federal, state, and local restrictions. This distinction prevails without regard to the location of the sale. Thus FFL sales at gun shows are still subject to NICS approval while private sales are not. The so-called "Gun Show Loophole" would be more accurately called a "Private Sale Loophole."

The Brady Law does not apply to licensed Curios & Relics (C&R) collectors, but only in respect to C&R firearms. The FFL Category 03 Curio & Relic license costs $30 and is valid for 3 years. Licensed C&R collectors may also purchase C&R firearms from private individuals or from federal firearms dealers, whether in their home state or in another state, and ship C&R firearms in interstate commerce by common carrier. Curios or relics are defined in 27 CFR 478.11 as "Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons." The regulation further states